Notice of Copyright The copyright to the book, Mr. Justice Jackson: Four Lectures in his Honor, is reserved by The William Nelson Cromwell Foundation and the book is hereby reproduced by the Robert H. Jackson Center with the Foundation's permission. This book may not be reproduced without the prior written consent of The William Nelson Cromwell Foundation. Robert H. Jackson Center May 18, 2006 Mr. Justice Jackson : Four Lectures in his Honor Association of the Bar of the City of New York and the His service on the Supreme Court William Nelson Cromwell Foundation produced many notable opinions. Few Justices in the history of the Court have written in a clearer or more sparkling style. During his service on the court he Withvery little formal education, but was drafted by President Truman to a great deal of natural ability, ambi- negotiate the final arrangements for the tion, and charm, Robert H. Jackson led trial of the Nazi war criminals and then an extraordinarily varied public career. to act as the American prosecutor at the He grew up as a farm boy in Pennsyl- Nuremberg Tribunal, a service of which vania, but his interest in law led him to he was very proud. work in the law office of a relative after It is not surprising that, some years graduating from high school. He man- after his death in 1954, the idea devel- aged to attend the Albany Law School oped to fill, at least in part, the void he for one year-the full extent of his for- left with a series of memorial lectures mal legal education-but his insatiable which would refresh the recollections curiosity led him to master not only of those who knew him and remind a law, but history and political science as new generation of his personal, profes- well. Admitted to the New York Bar in sional and judicial qualities. The four 1913, he engaged in a comprehensive lectures in this volume, which cover the law practice in Jamestown for twenty main facets of Jackson's career, were years and became one of the leading delivered by former Chief Justice trial lawyers of upstate New York. In Charles S. Desmond of the New York 1934 he went to Washington as General Court of Appeals, Professor Paul A. Counsel to the Bureau of Internal Rev- Freund of the Harvard Law School, enue, and in one of the fastest progres- Potter Stewart, Associate Justice of the sions in legal history, became success- Supreme Court and Lord Shawcross, ively, Assistant Attorney General in Chief British Prosecutor at the Nurem- charge of the Tax Division, Chief of the berg Trials. Antitrust Division, Solicitor General, and Attorney General. Finally, in 1941, Printed in U.S.A. at the age of 49, he was appointed to the Supreme Court as an Associate Justice. Mr. Justice Jackson FOUR LECTURES IN HIS HONOR BY CHARLES S. DESMOND, PAUL A. FREUND, POTTER STEWART, AND LORD SHAWCROSS Delivered under the Auspices of The Association of the Bar of the City of New York and The William Nelson Cromwell Foundation Published as one of the Legal Studies of The William Nelson Cromwell Foundation by Columbia University Press New York and London 1969 Copyright O 1969 Columbia University Press Library of Congress Catalog Card Number: 78-89566 Printed in the United States of America TRUSTEES OF THE WILLIAM NELSON CROMWELL FOUNDATION Joseph M. Proskauer I. Howard Lehman David W. Peck Bruce Bromley J, Edward Lumbarb John F. Brosnan Whitney North Seymour Lawrence Edward Walsh Bethuel M. Webster Bernard Botein Eli Whitney Debevoise John Marshall Harlan Henry N. Ess, 111. Orison S. Marden Dudley B. Bonsal Contents General Introduction by Whitney North Seymour, Esq. 1 The Role of the Country Lawyer in the Organized Bar and the Development of the Law, by The Honorable Charles S. Desmond, with an Intro- duction by John Lord O'Brian, Esq. 7 Mr. Justice Jackson and Individual Rights, by Pro- fessor Paul A. Freund, with an Introduction by The Honorable Charles D. Breitel 29 Robert H. Jackson's Influence on Federal-State Re- lationships, by The Honorable Potter Stewart, with an Introduction by The Honorable John M. Harlan 57 Robert H. Jackson's Contributions During the Nur- emberg Trial, by The Right Honorable Lord Shawcross, with an Introduction by Whitney North Seymour, Esq. 87 Mr. Justice Jackson General Introduction WHITNEY NORTH SEYMOUR, ESQ. Mr. Justice Robert H. Jackson died at the age of 62 on Oc- tober 9, at the beginning of the 1954 Term of the Supreme Court. His heart had warned him before that his burdens were too heavy, but his courageous nature and sense of duty did not admit slippered ease as a tolerable alternative. Death thus ended the extraordinarily varied public career of one who took pride in having been a country lawyer from Jamestown, New York, whose formal academic career ended with high school and one year at Albany Law School, but whose insatiabIe curiosity led him to master history and politics as well as law. Admitted to the New York Bar in 1913, he engaged in a comprehensive law prac- tice in Jamestown for twenty years, during which he be- came one of the leading trial lawyers of upstate New York. Restless for a part in the excitement of the early days of the New Deal, he was induced by President Roosevelt to come to Washington in 1934 as General Counsel to the Bureau of Internal Revenue in the Treasury Department. It was typical of his independence that he consulted his two old friends, Judge Sears and John Lord 07Brian,about this, and when they advised him to hold out for something of broader scope, he rejected their advice and twitted them af- 2 Whitney North Seymour terward about their lack of vision. They could hardly have foreseen how fast he would rise from this rather unpromis- ing beginning. In one of the fastest progressions in legal history, within seven years thereafter he became succes- sively Assistant Attorney General in charge of the Tax Division, Chief of the Antitrust Division, followed the Hon. Stanley Reed as Solicitor General, then followed the Hon. Frank Murphy as Attorney General. Finally, in 1941, at the age of 49, he was appointed to the Supreme Court as an Associate Justice, filling the vacancy created when Presi- dent Roosevelt appointed Mr. Justice Stone as Chief Jus- tice. His service on the Supreme Court produced-many nota- ble opinions, written in a spare, pithy style, completely in- dividual and setting forth the problem and its solution in an unforgettable way. Readers of the opinions of the Court could always spot a Jackson opinion by its characteristic liveliness and practical good sense. As references to some of the opinions in these lectures show, few Justices in the his- tory of the Court have written in a clearer or more spar- kling style. Indeed, sparkle is a rather unusual ingredient in Supreme Court opinions. In the middle of his service on the Court he was drafted by President Truman to negotiate the final arrangements for trial of the Nazi war criminals and then to present the American case against them before the Nuremberg Tribunal, a service of which he and most other Americans were very proud, because it helped to vin- dicate international law and give new content to the rule of law. Both as lawyer and judge he cherished and contributed to the brotherhood of the bar. Charming, companionable, unpretentious, gay, and humorous, he loved being with General Introduction 3 lawyers and they with him. A founder of the Federation of Bar Associations of Western New York, he was active in the New York and American Bar Associations. He was in constant demand as a speaker at Bar Associations and for those equally important convivial gatherings of lawyers which always follow speeches. It was inevitable that such a person would be loved and admired by his colleagues and that he would have a vast circle of friends including his seniors, juniors, and contem- poraries. In his time, he was certainly the most effective catalytic agent between Bench and Bar. Some years after his death, the void which he left naturally led to the sug- gestion that it should be filled, in part, by a series of memorial lectures which would refresh recollections of those who had known him and also remind a new genera- tion about his personal, professional, and judicial qualities. The inspired trio of friends who conceived the plan were Mr. Justice Frankfurter, long his colleague on the Court and close friend, Mr. Justice Harlan, who succeeded him on the Supreme Court and as the greatly admired Circuit Jus- tice of the Second Circuit (and who, like him, is regarded everywhere as the model of a lawyer's judge), and John Lord O'Brian, Esq., the dean of the American Bar who, like Jackson, was a gift to the nation from western New York. They found allies in E. Barrett Prettyman, Jr. and the other young men who had the privilege of being Jack- son law clerks. The Association of the Bar, with the approval of Presi- dents Rosenman and Niles and of Paul B. De Witt, its talented Executive Secretary, and under the auspices of the Committee on Post-Admission Legal Education, of which E. Nobles Lowe was the imaginative Chairman, undertook 4 Whitney North Seymour to include the lectures as part of its program. The William Nelson Cromwell Foundation cooperated in arranging for the lectures and this publication. We were extraordinarily fortunate in the choice of lec- turers and those who introduced them.